Are Members Liable for Their Staffers' Actions?

Q: I am a House staffer with a question about the outcome of the ethics investigation of Rep. Maxine Waters (D-Calif.). As I understand it, the Ethics Committee concluded that Waters' chief of staff violated House rules but that Waters herself did not. I had thought that Members were generally considered responsible for ethics violations committed by their employees. How is it possible then that Waters' chief of staff could have committed a violation without Waters committing one, too?

A: The Waters ethics investigation is worthy of a novel. It lasted more than three years, involved the hiring of outside counsel and had more twists and turns than a daytime soap opera. But all of those twists and turns are beside the point to your question, which goes to what the Ethics Committee ultimately concluded about Waters and Chief of Staff Mikael Moore, who also happens to be her grandson.

The investigation concerned actions taken during the financial crisis of 2002 to try to save OneUnited Bank, an institution in which Waters held stock and for which Waters' husband served on the board of directors. Last Month, the Ethics Committee issued a "letter of reproval" to Moore for "taking official action on behalf of OneUnited Bank, an entity in which your employing Member, Representative Maxine Waters, had a financial interest."

The letter cites three rules. One is the general rule requiring House employees to behave in a manner that reflects creditably on the House. The second is Rule XXIII, Clause 3, which states that a "Member, Delegate, Resident Commissioner, or employees of the House may not receive compensation ... from any source, the receipt of which would occur by virtue of influence improperly exerted from the position of such individual in Congress." The third is Paragraph 5 of the Code of Ethics, which says federal employees may "never discriminate unfairly by dispensing of special favors or privileges to anyone, whether for remuneration or not."

So what did Moore do wrong? The letter says Moore took actions to help OneUnited Bank's efforts to obtain assistance from the government and avoid financial collapse. Moore did so by communicating with the House Financial Services Committee on OneUnited Bank's behalf, including sending several emails in September 2008, when OneUnited Bank was in dire financial straits.

In an email to an aide, Moore wrote that OneUnited "is in trouble" and then followed up: "I think it will become a timetable issue." Days later, Moore sent another email that appeared to inquire about a meeting between staff members from the House Financial Services Committee and the Treasury Department. The staffer responded, "[We] will continue to pursue [the Treasury Department] acting without legislation, but [another staffer] and I are also working on drafting CDFI-related language to help them that we could try to possibly add to the bailout bill."

For these efforts on OneUnited's behalf, the Ethics Committee reproved Moore, but not Waters.

As you suggest, there have been cases where the Ethics Committee has deemed Members responsible for the violations of their subordinates. For example, in 2010, the committee charged Rep. Charlie Rangel (D-N.Y.) with ethics violations based in part on the conduct of his staff.

In a report issued last week, the Ethics Committee explained that Waters took steps to inform Moore of her conflict of interest with respect to OneUnited and to prevent him from acting on OneUnited's behalf. First, she publicly disclosed her financial interest in OneUnited well before Moore's actions. Second, she informed the chairman of the House Financial Services Committee of the conflict of interest and that she would not be involved in OneUnited's efforts to obtain financial assistance. And, finally, she told Moore about her conversation with the chairman and directed Moore not to help with OneUnited's request.

This certainly does not mean that Members need not worry about the conduct of their staff. To the contrary, the ethics report cautioned Members that, notwithstanding the result in this particular case, "they may be held responsible for the actions of their staff."

In cases involving potential conflicts of interest, the report provided some useful tips. Where a Member is aware of a potential conflict of interest regarding a particular person or entity, the report says, the Member should inform all staffers of the potential conflict. To avoid "mistakes" and "misunderstandings," the report recommends notifying staff of all entities in which a Member has a financial interest and documenting the notification. Finally, the report says, Members should direct staff to inform those entities to direct specific requests for assistance elsewhere.

The fact that the Ethics Committee did not hold Waters responsible for her chief of staff's actions does not signal a change to its policy that Members can be liable for the actions of their staffers. Rather, it provides yet another reminder that Members should closely supervise their staffers, lest they expose themselves to potential trouble with the Ethics Committee.

C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.